Permission to Exit the United States – Advance Parole (I-131)

Advance Parole allows the applicant to request permission to leave and re-enter the United States legally. it requires that the applicant have an open case with immigration such as TPS (I-821), DACA (I-821D) or Adjustment of Status (I-485).

Even those with an approved Advance Parole should consult with an attorney before leaving the United States to ascertain any risks in leaving the United States.

Political Asylum (I-589)

The I-589 application may be submitted abroad at a port of entry or within the United States.

The applicant will be asked to prove past persecution or fear of future persecution due to his or her race, religion, nationality, and / or membership in a particular social group or political opinion. The requirements are constantly being altered and cases are difficult to win. Substantial evidence, documentation and preparation are needed to convince immigration that a case has merit.

If denied, an asylum applicant will be placed in deportation proceedings and must appear before a judge in immigration court. Legal advice from a qualified attorney is very important in these cases.

 

Family Petition (I-130)

A United States citizen has several options for petitioning when using the I-130 application.

Citizens can petition their children regardless of age or marital status. The waiting period will depend upon the age, marital status and country of origin.

Citizens may also petition siblings regardless of their age or marital status. The application may also include the single children under 21 years old and spouse of the sibling being petitioned. This waiting period will vary depending on the country of origin.

Citizens are able to petition for residency for their mother and / or father. In some cases, step-parents may qualify.

Legal Permanent Residents may only petition their spouse or unmarried children, regardless of age. Residents can not petition siblings or parents.

Residency Through Marriage

To apply for residency through marriage, the applicant must be legally married to a permanent resident or citizen of the United States. Those who are in a domestic partnership or have been married only through the church do not qualify. Legal documentation through the court is necessary.

Both individuals wishing to proceed in the residency application must be single or divorced prior to marriage in order to qualify. Any previous marriages, including those entered into in another country, must be dissolved completely and recorded in the civil registry.

There are two types of residency through marriage: permanent and conditional. This will be determined by how many years the couple has been married by the time the beneficiary is issued residency.

In order to be approved, the individuals must show that their marriage was entered in good faith and for love. They should be able to prove the validity of their marriage. 

The process of applying for residency begins with the filing of an I-130 application. Those beneficiaries who last entered the United States with inspection and are married to a United States citizen are not required to leave the country in order to obtain lawful residency.

If the beneficiary has not entered the country legally, they are required to return to their country of origin in order to be interviewed at the United States Embassy within that country. There is the 245i exemption to this law which allows certain individuals who were petitioned by an employer or family member prior to May of 2001 to obtain their residency in the United States.

A legal consultation with a practicing and licensed immigration attorney, not a notary public, is highly recommended. Each case is unique and requires in-depth legal analysis to ascertain the right strategy.

E2 Visas

E-2 visas are authorized for investors who are nationals of a country which has a treaty of commerce and navigation with the US. The investor must be coming to the US to direct and develop the operations of an enterprise in which has invested, or is actively involved in the process of investing, a substantial amount of capital.

A petition is not required if the investor is applying for an E-2 visa outside of the US.

The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.

Waivers (I-601, I-212)

Immigration law states that individuals who have committed certain acts are ineligible to immigrate to the United States. In some cases, an individual is eligible to request a waiver (or pardon). If approved, that ground of inadmissibility would be waived thus making the person eligible to apply for legal residency.

Waivers are used in variety of cases due to situations like unlawful presence, deportations, crimes, immigration fraud or use of fraudulent documents. Waivers are some of the most difficult cases to be approved by USCIS and must be extremely well prepared.

In some cases, waivers can be submitted within the United States while the applicant is in the process of residency thus preventing the separation of family.

In other cases, the applicant must return to their country of origin and request the waiver at the United States Embassy of their country of origin, waiting outside the United States until the waiver is approved. Waivers can take months or even years to be decided. Once approved, the applicant can obtain legal residency.

Adjustment of Status (I-485)

The I-485 application allows the beneficiary to apply for permanent residency within the United States without having to travel to their country of origin. This application is fairly restricted and the most common ways to apply are:

  1. 245a protection will qualify an applicant. Meaning, an individual must be married to a United States citizen and have entered the country legally. Another option is Parole in Place (PIP) which offers protection to the spouse or parent of a person serving, or who has served, in the United States military.

  2. Apply for residency 1 year after the approval of an asylum case.

  3. Apply for residency 3 years after the approval of a U – Visa case.

  4. Apply for residency after the approval of a labor case with the Department of Labor. In order to qualify, the applicant must have 245i protection or have been in continual lawful status in the United States.

  5. Individuals with 245i protection who are parents of a United States child over the age of 21 may apply.

  6. Those with 245i protection who are being petitioned by a family member may apply for their residency by using the I-485 application once their priority date becomes current.

Labor Certification – Immigration through Employment

Labor Certification is very rare at this time but was a common process in the past. Now, very few people are eligible.

An employer petitions on behalf of an employee with the Department of Labor. When the labor certification is granted, the employee must then submit the I-140 application with USCIS. If the applicant has 245i protection or has continuously been in status in the United States, he or she may file an adjustment of status. If approved, the spouse and children under the age of 21 may be included.

If the applicant is not eligible to apply for adjustment of status, he or she must leave the United States and return to their country of origin to interview with the United States Embassy. As there is no waiver for unlawful presence when immigrating through an employer, the applicant’s case will be denied by the Embassy due to unlawful presence in the United States. This will bar the petitioner from immigrating to the United States for 10 years.

 

FOIA

All individuals residing in the United States have the right to request a copy of their records describing all interactions with the Immigration Court, border authorities, airport officials and offices of immigration. It is recommended to request these records so that an attorney can have all the details of your case and make sure pursuing a case with immigration is the right path. In some cases, individuals have orders of deportation on their record and are not even aware of it.

FOIA requests take a long time, even up to a year. A CD will be sent with all the information recorded on it.

 
Removal of Conditional Residency (I-751)

As previously mentioned, there are two types of residency: permanent and conditional. Conditional residency lasts two years and an additional step must be taken for the beneficiary to receive permanent residency. This process applies to a spouse and stepchildren who were granted conditional residency.

Transitioning from conditional to permanent residency requires the filing of the I-751 application. Currently, its approval can take up to a year. The application must be submitted with supporting documentation showing the couple is still married and remained married throughout the two year period. If two years pass and the conditional residency expires without applying for permanent residency through the I-751, all chances of permanent residency can be lost and a new I-130 will be needed for the process to begin again. The I-751 must be filed in the 90 day period immediately before the conditional residency is scheduled to expire.

Naturalization (N-400)

In most cases, an applicant must first be a legal permanent resident to qualify for United States citizenship. The N-400 application may be filed by an applicant who has been a legal permanent resident for at least 5 years. If the applicant obtained residency through marriage to a United States citizen, he or she may submit an application for citizenship after 3 years of residency.

Applicants must know how to read and write basic English, have good moral character, know the government and history of the United States and reside in the United States for the requisite time.

There may be waivers to the language requirement that a person can qualify for.

Upon applying for citizenship, USCIS will investigate your criminal record to determine if any crimes disqualify an applicant.

Consult with an immigration attorney before applying. Obtain all information regarding past criminal convictions when speaking with an attorney. If denied, some applicants may be placed in removal proceedings and have their residency taken away. Also, some applications may not be necessary. For example, a child born abroad to United States citizen parents may already be a United States citizen and an attorney would be able to evaluate such a s case to determine if United States citizenship was acquired at birth.

It is recommended that all legal residents become citizens. Residency can be lost but citizenship cannot unless it was obtained through fraudulent means.